Ocampo's shadow still hangs over the ICC

18 June 2018 by Janet H. Anderson, The Hague (The Netherlands)

These last weeks have been all about the unexpected acquittal of former Congolese vice president Jean Pierre Bemba Gombo at the International Criminal Court (ICC) on war crimes charges. Or rather: it’s been about the many reactions and interpretations of this decision on a narrow 3-2 majority by the appeals chamber.

The most important ramifications will be felt in the politics of the DRC where Bemba is a major player. But in the world of international criminal justice, the debate on what this means about how capable the ICC is of adjudicating such serious crimes is also stormy. And we have blogs from luminaries such as Alex Whiting saying the appeals judges’ decision upended the normal way judges should work, to Diane Marie Amann arguing this decision makes it very difficult to see how a commander sending troops into another country will ever be prosecuted. Leila Sadat meanwhile points back to the problems with which changes were actually confirmed and tried by the court. All three are close to the ICC’s prosecutor. And all three have convincing arguments.

Also, to be taken into consideration is Peter Haynes, Bemba’s lawyer who in a robust interview (of mine) was surprised but pleased that the judges took on board his team’s arguments, his key quote being: "The fact that there are victims doesn't mean that the man in the dock is guilty”

So, despite the “77 witnesses, the introduction of 773 items of evidence, and (…) a transcript that was thousands of pages long” as Leila Sadat enumerates, and the heavy significance of the elements which made up the case -- “[It] was the first to find a perpetrator guilty of command responsibility under article 28, and the first ICC case involving a conviction for sexual violence”-- the fact that the court didn’t get the charges right (and find Bemba guilty), “represents a complete failure of the court’s judicial process”.

One explanation acknowledged by Sadat is that the prosecution “did not do its job. The evidence was insufficient; the case theory was weak; they had the wrong mode of liability.” But she dismisses that argument as “plausible but unconvincing”. I wonder.

Why was Bemba in the dock at all?

Amann says Bemba’s trial didn’t happen in a vacuum. She means that real human rights violations and war crimes have occurred in the Central African Republic. She’s right. But also, the decision to target Bemba, and the investigation into him did not happen in a vacuum. What happened was largely under the leadership of former ICC prosecutor Louis Moreno Ocampo. The current prosecutor, Fatou Bensouda, has published strategy documents which provide a focus on sexual and gender-based crimes, sequencing of cases, using smaller fish to catch bigger ones, and investigative team presence on the ground. But the Bemba investigation belongs firmly in the pre-Bensouda arena. And it looks as if the ghost of Ocampo is still hanging over the ICC.

Despite that fact that the Central African Republic is a complex place with many political and military actors only Bemba was charged. Sylvie Panika, editor in chief of Radio Ndeke-Luka in Bangui, which broadcasts the programme 'Justice for all' spoke to IJT as Bemba appeared in court in 2010.

“Bemba didn’t come to the CAR on his own. Without these people [President Patassé and Former president Bozizé], I don’t see how the Bemba trial can be held. Bemba is likely to say that these people called him in. They should be present at the trial in order to give answers to the questions of the ICC and the Central Africans,” she explained.

As the trial chamber was preparing its judgement, we interviewed a few commentators who lamented the lack of linkage witnesses or proof of orders being issued from Congo to Bemba’s troops in CAR.

“It looks like the prosecution tried a lucky shot with this case. They thought it would be easy to prove and it wasn't and they should draw a lesson from that, especially since something similar happened in the Kenya case [IJT-172]. If this case ends in acquittal it would make a huge dent in the public appearance of what the office of the prosecutor can achieve in these mass atrocity trials. This would be yet another case in which the prosecutor failed to deliver the evidence promised, ” said Thijs Bouwknegt, an academic and trial monitor:

I haven’t yet found an academic or journalistic investigation into exactly how the ICC built its case against Bemba. But it might be opportune to look at what happened in neighbouring Democratic Republic of Congo and draw the parallels. Human rights activists Pascal Kambale has written extensively and critically on how the DRC investigation and build-up of cases was managed.

In the DRC there have also been questions about who the prosecutor chose to target: “For most Congolese, Thomas Lubanga did not fit into the category of persons bearing ‘the greatest responsibility’ for the crimes committed during the second phase of the Congolese war.”

Kambale adds that “the ICC’s arrest of Ngudjolo and Katanga appeared in the eyes of many Congolese to be the result of a mix of opportunism and a public relations operation having little to do with a genuine effort to punish the leaders of crimes committed in Ituri”.

Then there’s the issue of how exactly the prosecutor’s office (OTP) has collected its information: “From the outset, the OTP invested only in low-intensity and short investigations in Ituri, relying on the cooperation of the Congolese government and the UN mission in Congo, rather than on collecting direct victim testimony or using the material already collected by local NGOs for information on crimes and analysis of the cases. This system would eventually form the default operating protocol in the OTP and lead to investigative disasters elsewhere in the DRC and other countries.”

He also looks critically at the inefficiency of the investigations themselves including only “short periods of time” in the field. At a “15 July 2004 meeting with NGOs, the prosecutor highlighted his vision of ‘a short and focused investigation’ aiming at eliciting ‘a limited number of witnesses’. As he explained, this investigation strategy would ‘simplify witness protection’ while furthering the OTP’s policy of seeking ‘more evidence from states, less from witnesses’ and advancing his vision of ‘short trials with few charges’. At the same meeting, he stressed other benefits of the strategy, including the fact that it would minimize the need for having local people in the investigative teams, thus helping avoid situations where impartiality is questionable”

Kambale, in further articles, suggests that the reliance on evidence from states lead to a situation where Ocampo’s office could not afford politically to pursue other main actors: “The relatively minor players in Ituri that have been indicted by the ICC and put on trial in the Hague, indicates that the prosecutor deliberately left the most important actors—the national political and military leaders in DRC, Uganda and Rwanda who provided the militias with critical support—in the shadows. The court has thus been unable to place the crimes in their full historical context and is not effectively uncovering the truth.”

Other close observers of the ICC during Moreno Ocampo’s time also wrote critically. A journalistic investigation into ICC investigations globally quoted Beatrice Le Fraper du Hellen from the prosecutor’s office, as describing how in early investigations there was a sense that to build the institution, the most important thing was to start cases. “There was a lot of analysis to find out the situations of the most serious crimes… and start as soon as possible. The idea was if we want to get the court started, there was no way we could investigate for years and years and not have cases. Once we have sufficient evidence, we have to move.”

And academic and practitioner Christian de Vos focused on both DRC and Uganda investigations for his detailed critique. “One former official who led the court’s investigations in Uganda made clear that the former prosecutor routinely undervalued the investigations unit, with too little time given to conduct thorough investigations, another lamented the ‘long history of investigative mismanagement’”.

The consequences for the court as seen in 2013? “The judicial record to date, and the increasing dissatisfaction amongst affected communities with the court’s work, belies the desirability of the ‘light-touch’ approach to investigations that the OTP, at least under Moreno Ocampo’s tenure, has championed.”

The end of the Bemba case is many years later. We’ve ended up with what Sadat calls an “extraordinary” appeals chamber decision. And its origins can be traced back to the shifting sandy base of ICC investigations in its early years.

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